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RESOLUTION NO. R-1112-57: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN OKLAHOMA, AUTHORIZING COMPROMISE SETTLEMENT OF TWO CLAIMS FILED BY STEVEN DALE DUREN UNDER THE PROVISIONS OF THE WORKERS' COMPENSATION STATUTES OF THE STATE OF OKLAHOMA IN THE TWO CASES OF STEVEN DALE DUREN V. THE CITY OF NORMAN, WORKERS' COMPENSATION CASE NOS. WCC-2011-13882 Y AND WCC 2011-13883 A; DIRECTING THE LEGAL DEPARTMENT TO THEN FILE SUCH SETTLEMENTS AND ALL ATTENDANT COSTS IN THE WORKERS' COMPENSATION COURT, OKLAHOMA CITY, OKLAHOMA; AND AUTHORIZING AND DIRECTING THE FINANCE DIRECTOR TO SUBSEQUENTLY PURCHASE SUCH WORKERS' COMPENSATION COURT JUDGMENTS FROM THE RISK MANAGEMENT INSURANCE FUND.
ACTION NEEDED: Motion to adopt or reject Resolution No. R-1213-57; and, if adopted, direct payment of claims in the amount of $17,183.60 which will constitute judgment against the City of Norman.
ACTION TAKEN: ____________________________
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BACKGROUND: Steven D. Duren is a Fire Driver Engineer who filed Workers' Compensation Cases WCC 2011-13882Y and WCC 2011-13883A on June 25, 2011 alleging cumulative hearing loss and back injury from a single incident, respectively. The cases have proceeded through the normal litigation process. The Claimant has made a settlement offer to resolve all issues for a lump sum payment of $17,183. It is recommended that this settlement offer be accepted.
DISCUSSION: Mr. Duren was hired as a Firefighter on July 15, 1985. He was promoted to Fire Driver Engineer on April 14, 2004. He retired on September 30, 2011. He filed Workers' Compensation Claim WCC 2011-13882 Y on December 28, 2011 claiming a cumulative binaural hearing loss due to loud noises, sirens and engines with a last exposure date of exposure of June 25, 2011. Also on December 28, 2011, he filed Workers' Compensation Claim 2011-13883 A claiming a back injury on June 18, 2011 due to lifting heavy medical bags.
WCC 2011-13882 Y (hearing). This case relates to cumulative hearing loss over his span of employment. Mr. Duren was evaluated by his doctor, M. Stephen Wilson, who opined 3.1% permanent partial disability (PPD) binaural hearing loss and 5% for tinnitus, or a total of 8.1% PPD. This rating equates to $8,633.79, the maximum exposure to the City. He was then evaluated by the City's doctor, Kent C. Hensley, who opined 0% PPD binaural hearing and 0% tinnitus.
WCC 2011-13883A (back). On June 8, 2011, Mr. Duren was lifting heavy medical bags when he felt a twist in his back. The City initially denied this claim as it was not submitted as an OJI. Therefore, our first notice of injury was his filing of a claim with the Workers' Compensation Court on December 28, 2011. He was seen by his physician, Dr. Choe, who recommended an MRI. The MRI revealed bulging discs at L3-L4 and L4-L5. Thereafter, he was seen by Dr. Reynolds who recommended epidural steroid injections. He refused that treatment and returned to Dr. Choe who provided him with medication. There was no further evaluation or treatment.
Mr. Duren was evaluated by his doctor, Lance E. Rosson, who opined 29% permanent partial disability (PPD) to Mr. Duren's back. This rating equates to $46,835, the maximum exposure to the City. He was then evaluated by the City's doctor, Kent C. Hensley, who opined 0% PPD to the back although he did attribute 6% impairment as a pre-existing degenerative disease to the lumbar spine. This rating equates to $0.
Case evaluations. Mr. Duren is a long term public safety employee serving 26 years. He does have a prior Workers' Compensation case with the City (WCC 2007-08963 R). In the prior case Mr. Duren injured his shoulder in December 2005 which ultimately required surgery in 2006. The case was tried in December of 2007. The Court awarded one-half of the difference in the doctors' opinions, or 20% PPD to the left shoulder.
The claim for hearing loss is minimal. The Workers' Compensation Court has routinely recognized hearing loss claims at some level for retiring firefighters. The claim for compensation for his back, although not timely reported, does include medical documentation of an anatomical change (bulging discs) in the spine. It is not likely that the City would be successful in contesting the compensability of either the hearing or the back cases, although those issues could be raised at trial.
It is anticipated that the primary issue would be the nature and extent of permanent partial disability. These issues are a factual determination made by the Workers' Compensation Court based on the doctor's opinions submitted in the case, as outlined above. Therefore the maximum exposure for PPD in the hearing case is $8,633.79. The maximum exposure in the back case is $46,835. Once a percentage of permanent partial disability (PPD) is determined either by trial or settlement agreement, compensation is set considering a statutory compensation schedule and the average weekly wage of the employee. Mr. Duren's weekly compensation rate for PPD is $323. If the case is tried, compensation will be paid over time considering the weekly rate. If the case is settled, the compensation is normally paid in a lump sum.
Settlement offers. The Claimant, through his attorney, offered to settle these cases on a Compromise Settlement basis for a lump sum payment of $17,183. This settlement offer contemplates 4% PPD to the binaural hearing ($4,263) and 8% PPD to the lumbar back ($12,920). A comparison of the doctors' opinions and the settlement offer is shown in the Settlement Table attached hereto.
The settlement offer represents a reasonable determination of permanent partial disability on these injuries. The settlement offer is beneficial to Mr. Duren because it provides certainty for the PPD award and it will be paid in a lump sum rather than in weekly payments. The settlement offer is beneficial to the City in that it is a full, final, and complete settlement of any claims that may arise out of these particular injuries. The City will be insulated from future claims arising out of this injury. If the settlement offer is accepted then payment to the Claimant and his attorney would be as set out in the Settlement Table attached hereto.
RECOMMENDATION: For the reasons outlined above, it is believed that the settlement offer is fair, reasonable and in the best interest of the City. If approved, the settlement offer will be paid to Mr. Duren and his attorney in a lump sum. However, once the settlement is filed with the Workers' Compensation Court, it will constitute a judgment against the City of Norman that will be certified to the Cleveland County District Court. The judgment will then be placed on the property tax rolls for collection over the next three-year period in accordance with 85 O.S. § 2B, 51 O.S. § 159, and 62 O.S. § 361, et seq. This will reimburse the City's Risk Management Fund over the next three-year period. If you have questions or need additional information, please let me know.